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The Costs of Conscience and the Trump Contraception Rules
Nelson Tebbe
Nelson Tebbe, Micah Schwartzman, and Richard Schragger
We have been arguing that the
Constitution prohibits the government from accommodating religious practices when
doing so entails undue hardship to third parties. That principle is both
normatively justified and grounded in legal doctrine, according to work we have
published here,
here, here, and in several blog posts
and opinion pieces.
In response, critics have asked how
that argument fits together with another of our convictions, namely that religion
generally ought not to be treated with special solicitude in constitutional
law. In a new paper, we answer that
our normative arguments for the third-party harm principle also apply outside
of religious beliefs and practices. In particular, government accommodation of
conscience can generate costs to other citizens that raise many of the same
concerns as third-party harms in the religion context. (One of us has advanced
a similar argument in a separate reply
to critics.)
Contemporaneously, events in the
world are making this argument relevant. Last October, the Trump administration
issued two interim final rules that exempt employers that object to the
contraception mandate. (We explained the background to those rules here.)
The new rules relate closely to our new argument because they do not only
exempt employers who have religious
objections to the contraception mandate—they also exempt employers who have
moral
objections to the requirement. And because neither of these exemptions
requires any accommodation of workers, they will impose burdens by stripping
employees of contraception coverage without cost sharing.
The Trump administration may have
accommodated moral as well as religious convictions because of two cases that
had been working their way through the lower courts, March for Life v. Burwell and Real Alternatives v. HHS. In these
two cases, pro-life organizations brought challenges to the contraception
mandate. But because the organizations were nonreligious—their objections to
abortion were grounded in secular convictions—they could not take advantage of
existing accommodations, which extended only to religious nonprofits. Although federal
courts so far are coming out different ways in these cases (ruling for March
for Life but against Real Alternatives), our point here is simply that these
cases both present situations where nonreligious claims for accommodations are
brought against the contraception mandate. Yet both sets of claims are grounded
in conscience. Officials in the Trump administration were most likely thinking
of such cases when they wrote these two interim final rules.
Recently, a
federal court in Pennsylvania struck down both interim final rules, and
challenges to them are pending in several other courts. Although the court in
Pennsylvania relied on violations of the Administrative Procedure Act, it
recognized the harm to women. The court said:
[The moral
exemption] has conjured up a world where a government entity is empowered to
impose its own version of morality on each one of us. That cannot be right. . .
.
A simple
hypothetical illustrates the insidious effect of the Moral Exemption Rule. It
would allow an employer with a sincerely held moral conviction that women do
not have a place in the workplace to simply stop providing contraceptive
coverage. And, it may do so in an effort to impose its normative construct
regarding a woman's place in the world on its workforce, confident that it
would find solid support for that decision in the Moral Exemption Rule. It is
difficult to comprehend a rule that does more to undermine the Contraceptive
Mandate or that intrudes more into the lives of women.
One way to resolve the court’s
problem would be to insist that religion is special and disallow the moral
exemption, thereby limiting the overall impact on women. And that did seem to
be the instinct of the district court judge in the Pennsylvania case. But
another way to resolve it is to limit both religious and nonreligious accommodations
when they shift harm to others on the basis of religion or conscience. That is
the approach we take in the paper.
Protecting
conscience alongside religion is familiar from conscientious objector
exemptions during times of military conscription, and from “conscience clauses”
that protect doctors who object to participating in terminations of
pregnancies. But in all these contexts, it is hard to understand why any harm
that results to others would be any less objectionable simply because the
accommodation is nonreligious. We cannot and do not argue that the third-party
harm doctrine is limitless—it has no application where the government accommodates
mere policy preferences, for instance. But where the nonreligious convictions
being accommodated are as profound and important as they are these situations, the
same limits that apply to religious claims ought to apply to accommodations for
nonreligious claims as well. Posted
9:35 AM
by Nelson Tebbe [link]